Disclose Ryanair agreement, watchdog orders Council

But how will this impact on the confidentiality of other agreements, such as IT contracts, made with public authorities?

The ruling concerns a request made to Derry City Council early last year, seeking details of the Council’s agreement with Ryanair on the use of the airport, and how much the low-budget airline was paying to use airport facilities.

Under the Freedom of Information Act (FOIA), public authorities are obliged to disclose properly requested information unless an exemption applies. In most cases, even where an exemption applies, they must still disclose information to the public unless the public interest in protecting it is greater than the competing public interest in disclosure.

In this case the Council argued that it did not have to release the information under three exemptions:

• That disclosing it “would, or would be likely to, prejudice” the UK’s economic interests or the financial interests of a public authority – in this case the economic interests of the region and the commercial interests of the airport and of Ryanair;

• That it was obtained from a third party (Ryanair) and to disclose the information would be a breach of confidence actionable by that third party or any other person; and

• That to disclose it “would, or would be likely to, prejudice the commercial interests of any person”, including the Council itself.

The Council refused to release the details and a complaint was lodged with the Information Commissioner’s Office.

The Information Commissioner, Richard Thomas, considered each exemption in turn.

Economic and financial prejudice

To claim this exemption, said the Commissioner, there had to be a “real and significant risk” of prejudice, and this had not been shown.

He found that at the time of the request the agreement was almost six years old and some of the information in it – such as the flight schedule and the duty to keep the service confidential until announced by Ryanair – was already in the public domain.

In addition, the Council’s circumstances had changed since the agreement was negotiated. At that time the Council was trying to set up an airport and encourage investment, while at the time of the request the airport was already established and other carriers were using its facilities.

The economic and financial considerations, and the risk of prejudice resulting from them, were no longer the same, ruled Thomas.

Furthermore, he found that the public is now aware that airports that are not well established offer incentives to encourage carriers to use their facilities, following an EU ruling on an agreement between Ryanair and South Charleroi Airport, which highlighted the issue.

For all these reasons, said Thomas, the exemption did not apply.

Confidentiality

The question for the Commissioner in this instance was whether the Council owed an express duty of confidence to Ryanair.

He considered an email sent on 2nd February 2005 from Ryanair to the Council stating:

“Our contract with Derry Airport is confidential and contains commercially sensitive information .The information should therefore not be disclosed under the FOI Act.”

But this showed only Ryanair’s view as to confidentiality at the time of the email. It did not create an express duty of confidence, ruled Thomas.

Nor did the initial non-disclosure provision found in the agreement apply – since the fact that the airline flies out of Derry Airport has been in the public domain since 1999. In fact the Commissioner found nothing in the agreement, or in the correspondence leading up to the agreement, that would create an express duty of non-disclosure on the part of the Council.

The confidentiality exemption therefore did not apply.

Commercial prejudice

According to the Commissioner, the risk of prejudice had to be assessed at the time of making the request.

While he was satisfied that the operation of a regional airport by a public authority is a commercial activity, he found that the Council had not shown how disclosing an agreement negotiated in 1998 would or would be likely to cause prejudice now.

The commercial interests of the Council were quite different at the time of the request to those at the time it was negotiating the agreement, and some of the details had already been made public. Even if the disclosure could prejudice the Council by damaging its business reputation, the Council had not shown that its reputation would be damaged, added Thomas, finding that this last exemption did not apply either.

He ordered the Council to release the requested information within 30 days.

According to Louise Townsend, a freedom of information law specialist with Pinsent Masons, the law firm behind OUT-LAW.COM, the ruling could have wider commercial implications. 

"Public authorities can no longer hide behind blanket confidentiality obligations in contracts and contractors can no longer expect them to. Contractors should consider what information they give to the public sector, from tender stage through to post-completion, and how this will be protected. Public authorities are being advised to amend standard confidentiality clauses and contractors must recognise that the onus is on them to justify why their information should not be disclosed. Not even financial information will always warrant protection."